Act of real ownership
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Act of real ownership
What is the deed of real ownership?
Acts of Real Ownership are documents issued by Notaries that identify the real owners of a Mercantile Company. A beneficial owner is understood to be anyone who is in possession of more than 25% of the shares or participations of a Company.
According to information published in financlick.es:
The Real Ownership Act entered into force by the application of Law 10/2010, of April 28, on the Prevention of Money Laundering and Terrorism Financing (supplemented by Royal Decree 304/2014, of May 5, approving the Regulation of the aforementioned Law 10/2010) and given the need to identify the beneficial owners involved in the deed when formalizing any operation or business relationship. This document certifies that those involved in the operation are the owners of the assets or rights of the company involved and operations on behalf of third parties or the use of front men are avoided.
In the case of legal persons, it was frequent that the person who went to the notary to sign a deed, or to the bank to formalize a policy, was only a representative of the entity and not the true owner of the company, so the The true owners of the operation did not appear in the document. This situation favored the intervention of front men and money laundering. Since the entry into force of the aforementioned law, notaries, as collaborators with the prevention of money laundering, are legally obliged not to admit the formalization of deeds or policies, if the appearing party does not duly identify the real owners of the legal entity to the one it represents.
What is meant by Beneficial Ownership?
The real owner identifies, as we have already said, the natural person or natural persons who are behind a commercial company. With this document it is declared, therefore, if it is acting on its own account or on behalf of third parties.
It is important to bear in mind that control in the management of a company can manifest itself in various ways:
participation in the share capital voting rights agreements statutory provisions In the case of voting rights or participations in the capital, the anti-laundering regulations set at 25% participation the figure from which it is considered that a natural person exercises control in the management of the society. Minor percentages should not be reflected in the Certificate of Beneficial Ownership.
The real owners are consequently the owners of the legal person or those who exercise control over it and therefore the real beneficiaries of the business to be carried out.
It is in article 8 of Royal Decree 304/2014 where the considerations on who should be considered real owners are established. The real owners of the company will always be natural persons and may be one or more. The beneficial owner may be by control, by possession or by administration.
Beneficial owner by control is the natural person who owns more than 50% of the share capital or voting rights. This occurs if the natural person is the owner of the shares or participations in the company (direct control) or if the natural person is the owner of another company or other companies that in turn have shares or participations in the first (indirect control). The real owner by control will also be the natural person who, through agreements or statutory provisions or by other means, exercises control, directly or indirectly, of the management of a legal person.
Beneficial owner by possession is the natural person who holds more than 25% of the share capital or voting rights, either directly or indirectly (by participation in other companies that in turn participate in the first).
Beneficial owner by administration is the one who exercises control of the company as its administrator, as long as none of the above assumptions apply. In this case, the sole administrator or the CEO, or even all the members of the administrative body, will be the real owner.
What the Act of Beneficial Ownership is used for The Act of Beneficial Ownership is, therefore, an essential requirement when carrying out certain procedures, and can be requested in commercial businesses, corporate operations or powers of attorney, as well as in any agreement of an economic nature. It can be required by a bank, a notary, a partner or a lawyer.
There are, however, certain exceptions. It will not be necessary to identify the beneficial owner in operations of less than 1,000 euros (or less than 2,500 euros in the case of payment of lottery prizes and other games of chance). In addition, verification of identity in the execution of operations will not be mandatory when there are no doubts regarding the identity of the intervening party, when their participation in the operation is accredited by their handwritten or electronic signature and said verification has been previously carried out in the establishment. of the business relationship.
How the Act of Real Ownership is obtained All companies created since the entry into force of the aforementioned Law 10/2010, of April 28, on the Prevention of Money Laundering and Terrorist Financing in 2010 incorporate in its deed of incorporation the deed of real ownership. For companies that were created prior to the entry into force of said Law, it is necessary to have this act, which must be done before a notary. It is highly recommended to have this document as it can be requested at any time.
The identification of the Owner or Real Owners of a legal person, is accredited before a notary and is reflected in the document called Act of Real Ownership. It is a Notarial Deed in which the representative or attorney of the company declares before the Notary Public the existence or not of a partner with more than 25% of the share capital. In the event that they do exist, said partners must be identified and the percentage of participation must also be stated.
It should be noted that it is not necessary to prove this information, it is only a statement by the representative of the company before the Notary. Once the deed of real ownership is formalized, it should be duly preserved with the other deeds of the company. It will be valid as long as there are no changes in the composition of the social capital that affect the declared Real Ownership. In the event that the composition of the partners of the legal person is subsequently modified, it will be necessary to issue a new certificate.
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